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RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Rapanos, et al. No. 03-1489 ELECTRONIC CITATION: 2004 FED App. 0239P (6th Cir.) File Name: 04a0239p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: David E. Dearing, Indianapolis, Indiana, for FOR THE SIXTH CIRCUIT Appellants. Katherine W. Hazard, UNITED STATES _________________ DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: David E. Dearing, Indianapolis, UNITED STATES OF AMERICA, X Indiana, for Appellants. Katherine W. Hazard, UNITED Plaintiff-Appellee, - STATES DEPARTMENT OF JUSTICE, Washington, D.C., - for Appellee. - No. 03-1489 v. - _________________ > , OPINION JOHN A. RAPANOS; JUDITH A. - _________________ NELKIE RAPANOS; PRODO, - INC.; ROLLING MEADOWS - DANNY C. REEVES, District Judge. Plaintiff-Appellee HUNT CLUB; PINE RIVER - United States brought suit against the Defendants pursuant to - the Federal Water Pollution Control Act Amendments of BLUFF ESTATES, INC., - Defendants-Appellants. 1972, Pub. L. No. 92-500, 86 Stat. 817, as amended 33 U.S.C. - § 1251 et seq., commonly known as the Clean Water Act N (“CWA”). Defendants-Appellants John Rapanos, Judith Appeal from the United States District Court Rapanos, Prodo, Inc., Rolling Meadows Hunt Club, and Pine for the Eastern District of Michigan at Detroit. River Bluff Estates, Inc. appeal the district court’s entry of No. 94-70788—Bernard A. Friedman, Chief District Judge. judgment in favor of the United States. Prodo, Inc., Rolling Meadows Hunt Club, and Pine River Bluff Estates, Inc. are Argued: June 9, 2004 wholly owned by John and Judith Rapanos. For the reasons discussed below, we AFFIRM the judgment of the district Decided and Filed: July 26, 2004 court. Before: SILER and GIBBONS, Circuit Judges; REEVES, BACKGROUND * District Judge. The Rapanos, through their wholly-owned companies, owned various parcels of land in Bay, Midland, and Saginaw Counties in Michigan. These parcels are known as the Salzburg, Hines Road, Pine River, Freeland, Mapleton, and Jefferson Avenue sites. The Rapanos were charged with * The Honorable Danny C. Reeves, United States District Judge for illegally discharging fill material into protected wetlands at the Eastern District of Kentucky, sitting by designation. 1 No. 03-1489 United States v. Rapanos, et al. 3 4 United States v. Rapanos, et al. No. 03-1489 these sites between 1988 and 1997. The United States alleges When Mr. Rapanos refused to comply with an administrative that the Rapanos attempted to fill these wetlands to make the compliance order issued by the Environmental Protection land more conducive to development. Agency (“EPA”) (requiring him to immediately cease his filling of the Salzburg site), the EPA referred the matter to the I. The Salzburg Site Department of Justice. Before filling wetlands subject to CWA jurisdiction, a II. The Hines Road Site landowner must first obtain a permit from the Army Corps of Engineers (“Corps”). 33 U.S.C. § 1344. In December 1988, The Defendants undertook to expand drains, build roads, John Rapanos asked the state to inspect the Salzburg site in and fill the wetlands at the Hines Road site. However, in July hope of obtaining a permit to construct a shopping center at 1992, the state issued a cease and desist letter to stop the this location. The state informed him that the site was likely ongoing activity. Mr. Rapanos did not reply to this letter. a regulated wetland and sent him an application for the Thereafter, the state conducted an examination of the site necessary permits. A state representative toured the site in pursuant to a search warrant in June 1994. In June 1997, the March 1989, noting that the site probably contained wetlands state returned to the site and noted that fill had been added to but could be developed if the necessary permits were issued. certain areas since the 1994 search. Accordingly, the EPA Mr. Rapanos hired a consultant, Dr. Goff, to prepare a report issued an administrative compliance order. The EPA alleges detailing the wetlands on the Salzburg site. Dr. Goff that Mr. Rapanos did not comply with this order. concluded that there were between 48 and 58 acres of wetlands on the site, presenting his findings in the form of a III. The Pine River Site report and a map. Upset by the report, Mr. Rapanos ordered Dr. Goff to destroy both the report and map, as well as all Mr. Rapanos also hired contractors at the Pine River site to references to Mr. Rapanos in Dr. Goff’s files. However, Dr. construct ditches, spread dirt and sand, construct roads, and Goff was unwilling to do so. Mr. Rapanos stated he would clear vegetation. The state sent Mr. Rapanos a cease and “destroy” Dr. Goff if he did not comply, claiming that he desist order after an official observed that portions of the would do away with the report and bulldoze the site himself, wetlands had been filled. The EPA issued an administrative regardless of Dr. Goff’s findings. compliance order in September 1997 after Mr. Rapanos refused to comply with the cease and desist order. The EPA In April 1989, workers began leveling the ground, filling in alleges that Mr. Rapanos also did not comply with the low spots, clearing brush, removing stumps, moving dirt, and administrative order. dumping sand to cover most of the wetland vegetation. This activity caused Dr. Goff to note that the site now looked “like IV. The Criminal Proceedings nothing more than a beach.” In August 1989 the state attempted to inspect the Salzburg site, but was denied access. Criminal charges were brought simultaneously with the Three months later, authorities from the state returned, armed instant civil action. In July 1994, the district court declared with a search warrant. a mistrial in Mr. Rapanos’ criminal trial. The trial was moved to Flint, Michigan and, on March 7, 1995, the jury in the In 1991, a state representative returned to the Salzburg site, second trial returned a guilty verdict on two counts. United noting that the site had been “tiled” to drain subsurface water. States v. Rapanos, 895 F.Supp. 165, 166 (E.D. Mich. 1995). No. 03-1489 United States v. Rapanos, et al. 5 6 United States v. Rapanos, et al. No. 03-1489 Following trial, the district court granted Rapanos’ motion for Rapanos’ petition for a writ of certiorari. Rapanos v. United a new trial, finding that the court had improperly allowed the States, 124 S. Ct. 1875 (2004). United States to pursue a line of questioning that was prejudicial to the defendant. Id. at 169-70. This court, V. The Civil Proceedings however, determined that the line of questioning was not improper and reversed the district court’s grant of a new trial The United States initiated this civil action in February and remanded for sentencing. United States v. Rapanos, 115 1994, confining its scope to the Salzburg site and naming F.3d 367, 374 (6th Cir. 1997). The district court sentenced only Mr. Rapanos as a defendant. In June 1996, the United Rapanos to three years probation and ordered him to pay a States added Mrs. Rapanos to the complaint, as well as Prodo, $185,000 fine. On appeal, this court affirmed the conviction Inc., a company owned by Mr. Rapanos. In February 1998, but remanded for resentencing. United States v. Rapanos, the United States amended its complaint to add allegations 235 F.3d 256, 261 (6th Cir. 2000). concerning the Hines Road and Pine River sites. Pine River Bluffs Estates was also added as a defendant. The Supreme Court granted Rapanos’ request for a writ of certiorari, vacating and remanding this court’s order in light Following a 13-day bench trial, the district court concluded of Solid Waste Agency of Northern Cook County v. United that Rapanos had filled 22 of 28 acres of protected wetlands States Army Corps of Engineers, 531 U.S. 159 (2001) at the Salzburg site, 17 of 64 acres of protected wetlands at (“SWANCC”). Rapanos v. United States, 533 U.S. 913 the Hines Road site, and 15 of 49 acres of protected wetlands (2001). Following remand from the Supreme Court, this at the Pine River site. The district court concluded that the court remanded the case to the district court for further government had established that 54 of the filled acres fit the consideration. United States v. Rapanos, Nos. 98-2424, 99- three parameters for wetlands, i.e., vegetation, soils, and 1578, 99-1074, 16 Fed. Appx. 345 (6th Cir. 2001). On hydrology. In addition, the court found that the United States remand, the district court set aside the conviction, finding that did not meet its burden regarding the existence of wetlands at the Freeland and Mapleton sites. The district court entered the United States lacked jurisdiction in the wake of the 2 Supreme Court’s ruling in SWANCC. United States. v. these findings and conclusions on March 22, 2000. Rapanos, 190 F.Supp. 2d 1011 (E.D. Mich. 2002). On appeal, this court reversed the order of the district court, STANDARD OF REVIEW reinstated the previous conviction and remanded to the district court for resentencing. United States v. Rapanos, 339 F.3d Following a bench trial, this court reviews the district 447, 454 (6th Cir. 2003). A panel of this court determined court’s findings of fact for clear error and reviews its that, despite the Supreme Court’s decision in SWANCC, the conclusions of law de novo. Pledger v. United States, 236 United States retained jurisdiction over the wetlands at issue F.3d 315, 320 (6th Cir. 2000). Factual determinations of a by virtue of the CWA.1 Recently, the Supreme Court denied trial court are not clearly erroneous unless we are “left with the definite and firm conviction that a mistake has been 2 On January 10, 2003, after the Supreme Court overturned the 1 The land at issue in the criminal trial was the Salzburg site.

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